Uncertainty in favor

04.03.2019

The disagreement of one of the parties on the decision of the court cannot testify to the making of a knowingly unjust decision. This was stated by the Supreme Court, upholding the acquittal of the Odessa lawyer.

In this case (№ 520/8135/15-к), the prosecutor demanded to cancel the verdict of the local court and the definition of the appeal, arguing that the former should have returned the indictment to him if he did not comply with the requirements of the Criminal Procedural Code, and not assign the case to . Also in the complaint it was noted that «the actions of the courts of first and appeal instances can testify only to their bias».

But the board of the Cassation Criminal Court agreed with the conclusions of the lower courts. In particular, given the uncertainty in the law, the concept of «unlawfulness» and the ambiguous practice of the Supreme Administrative Court on issues those were resolved by a judge (on the exercise of the right to peaceful assembly in Odessa at the end of 2013). The Cassation Criminal Court also took into account the opinion of the disciplinary chamber of the High Council of Justice, which refused to bring the judge to disciplinary responsibility.

The accusation was based only on the fact that the Supreme Administrative Court canceled this decision of the Odessa Regional Administrative Court, although it was left unchanged in the appeals instance.

As noted by the Cassation Criminal Court, the subjective side of the crime, provided for by Part 2 of Article 375 of the Criminal Code, is characterized exclusively by direct intent with the obligatory presence of motive. The judge was accused of committing a crime from other personal interests, namely, from «career motives». However, the prosecution did not establish and did not provide the court with any evidence of what exactly the judge’s careerism was and what actions he took to implement this motive, how it influenced his decision on his career growth.

However, it was found that for all the time of work he was not justified with a statement or a request for transfer, he did not resolve the issue of his dismissal, his candidacy for the administrative post was not considered, and he never showed such an intention. Moreover, long before these events, the judge was elected to the position indefinitely.

In addition, as evidence of the «unlawfulness» of the ruling, the testimony of witnesses was used, who only confirmed their disagreement with this decision.

So, Cassation Criminal Court left unchanged the decision on this case, by which the judge was found not guilty of committing a criminal offense under Part 2 of Article 375 of the Criminal Code, due to the absence of corpus delicti (objective and subjective parties) in his actions. This position will clearly help other judges, against whom the prosecutor’s office initiated proceedings under Article 375 of the Criminal Code, to defend themselves against false accusations.